The Levy Report and the ‘Occupation’ Narrative

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"The World Says No to Israeli Occupation" rally at U.S. Capitol building in 2007. Photo: wiki commons.

Looking back over the last two weeks, what appeared to hit a raw nerve with critics of the report of Justice Edmond Levy’s committee was not what it had to say about the specific issues for which it was appointed, like zoning and planning in the West Bank, but rather with how it dealt with the broader narrative for describing the Israeli-Palestinian conflict. This became evident in how the reaction focused on the report’s conclusion that “the classical laws of ‘occupation’ as set out in the relevant international conventions cannot be considered applicable to … Israel’s presence in Judea and Samaria.”

How did Justice Levy, who recently retired from Israel’s Supreme Court, reach this conclusion along with his two colleagues? They argued that the Israeli presence in the West Bank was unique, sui generis, because there was no previously recognized sovereign there when it was captured by the Israel Defense Forces during the Six-Day War in 1967. The Jordanian declaration of sovereignty in 1950 had been rejected by the Arab states and the international community, as a whole, except for Britain and Pakistan.

Moreover, as the Levy Report points out, the Jewish people still had residual historical and legal rights in the West Bank emanating from the British Mandate that were never cancelled, but rather were preserved by the U.N. Charter, under Article 80 — the famous “Palestine Clause” that was drafted, in part, to guarantee continuity with respect to Jewish rights from the League of Nations.

There were other issues that made the Israeli presence in the West Bank unique. With the advent of the Oslo Agreements in the 1990s, there was no longer an Israeli military government over the Palestinian population. Indeed, the famous 1949 Fourth Geneva Convention on occupied territories stipulates that an Occupying Power is bound to its terms “to the extent that such a Power exercises the function of government in such territory (Article 6).”

Yet the establishment of the Palestinian Authority in 1994, in accordance with the Oslo Accords, also made the situation complex: as a result, some functions of government were retained by the IDF, other functions were exercised by the Palestinians, and there were also shared powers. In other words, the situation on the ground in the West Bank was not black and white, which allowed moral judgments to be easily made about a continuing Israeli occupation. True, the Palestinians did not have an independent state, but they could not be considered to be under “occupation” when at the same time they were being ruled first by Yasser Arafat and then by his successor, Mahmoud Abbas.

The idea that the West Bank could not be simply characterized as “occupied” also did not diverge from traditional Israeli legal opinions. Israel’s former ambassador to the U.N., Chaim Herzog (who would later become Israel’s president), appeared in the General Assembly on October 26, 1977, and laid out Israel’s legal status in the territories with respect to the Fourth Geneva Convention on occupied territories. He stated: “In other words, Israel cannot be considered an ‘Occupying Power’ within the meaning of the Convention in any part of the former Palestine Mandate, including Judea and Samaria.”

It is instructive to see how the international community looks at far clearer cases of territories that came under military control of foreign forces as a result of armed conflict. On July 20, 1974, the Turkish Army invaded Cyprus, which had been an independent state since 1960, taking over 37 percent of the island. The Turkish zone declared its independence in 1983, but no state, except Turkey, recognized the new government.

How does most of the international community refer to the territory of Northern Cyprus? The fact of the matter is that they don’t label it an “occupation.” When the EU accepted Cyprus as a new member state in 2004, it prepared a memorandum explaining that the accession to the EU was suspended “in the area of the Republic of Cyprus in which the Government of the Republic of Cyprus does not exercise effective control.”

There is also the example of Western Sahara, which was taken over completely by the Moroccan Army in 1979. After Spain withdrew from the territory and a joint administration with Mauritania failed to emerge, Morocco viewed Western Sahara as Moroccan territory. Morocco’s claim was challenged by the Polisario, backed by Algeria. The International Court of Justice in The Hague formally rejected the Moroccan claim of sovereignty, recognizing the right of the people of Western Sahara to self-determination. In repeated resolutions in the U.N. over the future of Western Sahara, it was not called “occupied territory,” even though the Moroccan Army has been sitting on land beyond the borders of Morocco.

At the end of World War II, the Soviet Army invaded Japan and occupied the Kuril Islands, which had been previously Japanese territory. Here again, the Japanese Foreign Ministry’s recent paper on the Kuril Islands doesn’t even speak about ending the Russian occupation, but rather about the need to “reach a settlement of this unresolved issue of the Northern Territories.”

All three cases, Northern Cyprus, Western Sahara, and the Kuril Islands, are open and shut cases of foreign occupation under international law and yet in the diplomatic arena the term “occupation” is not formally applied to them. Ironically, in the case of the West Bank, where the Israeli presence is a far more complex legal issue, the term “occupation” has been uncritically applied, even by Israelis.

Thus the decision to use the term “occupation” appears to emanate as much from political considerations as it does from any legal analysis. For “occupation” is a term of opprobrium. In much of Europe, the term still invokes memories of the Nazi occupation of France. Those being constantly bombarded by the term “occupation” in Europe undoubtedly make subconscious links between Israeli behavior in the territories and the events of the Second World War. Indeed that is the intention, in many cases, of those adopting this language, despite the fact that such analogies are repulsive to anyone with the least bit of Jewish historical memory.

Nonetheless, pro-Palestinian groups, and their allies on the far left, use the charge of “occupation” as part of their rhetorical arsenal, along with “colonialist, apartheid state,” for waging political warfare against Israel. The charge of “occupation” has evolved into one of the most potent weapons in the delegitimization campaign against Israel.

It is noteworthy that the International Committee of the Red Cross (ICRC) in Geneva published a study on the subject of occupation in April 2012 that concluded that the term had unquestionably acquired a “pejorative connotation.” Experts attending the meetings of the ICRC recommended replacing the term with new legal nomenclature to get wider adherence to international humanitarian law by those who were occupying foreign territory but wanted to avoid the occupation label.

There are also well-meaning Israelis who call for an “end to the occupation” to build internal political support for a full Israeli withdrawal from the West Bank, by appealing to the conscience of Israelis who do not want to think of themselves as occupiers nor have the world community see them this way. But in making this call, its advocates take away from Israel the rights it acquired in U.N. Security Council 242 that did not require it to pull back to the pre-1967 lines, which have been regarded by most Israeli leaders from Rabin to Netanyahu as indefensible.

Levy’s committee has restored Israel’s legal narrative about its rights in the West Bank. There are those who charged that in rejecting the application of the term “occupation” to the Israeli presence in the West Bank, the Levy committee’s report will set the stage for eventual Israeli annexation of the territories. Of course these concerns are baseless. The report of the Levy committee says absolutely nothing about what political solution for the future of the West Bank is desirable.

Israel is not going to persuade its international critics to change their views on the status of the territories. Nonetheless its conclusions are still important for one diplomatic scenario, in particular: a negotiated end of the Israeli-Palestinian conflict in the future. For at the end of the day, there is a huge difference in how a compromise will look if Israel’s negotiating team comes to the peace table as “foreign occupiers,” who took someone else’s land, or if they come as a party that also has just territorial claims. The Levy Report is first of all for Israelis who need to understand their rights which unfortunately have been forgotten since the days of Abba Eban and Chaim Herzog.

Levy’s discourse is relevant for the Palestinian side in one important respect. If the Palestinians are constantly fed by the international community the “occupation” narrative, their propensity to consider making a real compromise, which is critical for any future agreement, will be close to nil. In fact, this false narrative only reinforces their mistaken belief in the delegitimization campaign against Israel as an alternative to seeking a negotiated settlement of the conflict. Rather than creating a setting for diplomacy to succeed, it only makes a real Middle Eastern peace more remote than ever.

This post first appeared in Israel Hayom.

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Let your voice be heard!

The few who are actually refugees should not be given access to Israeli citizenship unless they swear fealty to the Jewish State. Otherwise they could form a Fifth Column. But most of the alleged refugees have never seen Israel west of the Jordan. They are second, third, fourth and maybe fifth generation who are really not entitled to the status of a refugee.

Wallace Edward Brand

I am glad to see that my own legal opinion was confirmed by the Levy Report. In 1920 the WWI Allies recognized the ownership of the Jewish people of the political rights of World Jewry, but decided to put these political rights in trust until the Jews had attained a population majority in Palestine. At the time, the Jews were only a 10% minority in all Palestine. Until that time they would just have a National Home, not a State. Otherwise the government would be antidemocratic. The trustee had legal dominion until that time that included the power to legislate and administer the law in Palestine as “mandatory power” (read “trustee”). All the Jews had at that time was a beneficial interest in the political rights. But when the trustee abandoned its trust, the beneficiary had the best claim, and soon thereafter it also met the tacit standard of population majority. Now it has a population majority of 80%.
A British Foreign Office Memorandum of September 19, 1917 showed this plan to await a population majority before legal dominion of the political rights, and hence sovereignty would vest in the Jews. That San Remo resolution, adopting the Balfour policy, was confirmed by the League of Nations and the US. and preserved by Article 80 of the UN Charter. No lawyer who has taken the time to do sufficient research to understand the facts, obscured by time and by Soviet and Arab propaganda, could reach any other conclusion.

Judge Levy’s conclusions are essentially reiterations of well-established facts both leagal and real. What is unreal is the absolution given the jordanian regime which stripped citizens of their citizenship leaving them stateless as a demographic time-bomb. What Israel must demand is that jordanian citizenship of Arabs living west of the Jordan be re-instated allowing them to re-patriate to their homeland should they choose to.

Judge Levy’s conclusions are essentially reiterations of well-established facts both leagal and real. What is unreal is the absolution given the jordanian regime which stripped citizens of their citizenship leaving them stateless as a demographic time-bomb. What Israel must demand is that jordanian citizenship of Arabs living west of the Jordan be re-instated allowing them to re-patriate to their homeland should they choose to.